Miller Asks Court to Invalidate the State's Ballot Counting Rules

Published: December 9, 2010

The Senate candidate also uncovers evidence of other apparent statutory violations

Juneau, Alaska. December 8, 2010 -- Earlier today, Judge William Carey held a nearly two-hour hearing on challenges brought by Joe Miller, Republican nominee for the U.S. Senate, to the State's handling of the 2010 general election. Miller asked the Court to rule in his favor on his claims that state law prohibits misspelled write-in ballots from being counted, and bars the State from discriminating against certain voters by applying much more lenient and favorable standards and procedures for determining the validity of write-in ballots than for other ballots.

Miller also maintains that the Alaska's Administrative Procedures Act barred Lieutenant Governor Craig Campbell and Director of Elections Gail Fenumiai from simply imposing these decisions by fiat, rather than giving the public advance notice and allowing them an opportunity to comment on the newly created write-in ballot review guidelines.

Additionally, he submitted numerous affidavits establishing that several thousand people were permitted to vote, with no record that they showed proper identification, and that most or all of the write-in ballots from several precincts appear to have been filled out by the same person or a small group of people. He also submitted newly discovered evidence showing that at least several hundred convicted felons from the Alaska sex offender database were permitted to cast ballots, in apparent violation of the state's voter disenfranchisement laws.

Miller explained, "This is not about my winning or losing. This is about upholding the integrity of the electoral process, and ensuring that the public can be confident in the results. The State cannot be permitted to flagrantly disregard nearly a half-dozen different statutes and make up new rules on the fly."

Michael T. Morley, the Washington-D.C. based appellate and election law attorney who argued the case on Miller's behalf, emphasized, "There is certain language used in federal law, in the law of our sister states, in the Alaska Administrative Code, and even in other portions of the very statute at issue that lawmakers use when they wish to allow misspelled ballots to be counted. The legislature specifically chose to omit such language from the provision regarding write-in ballots."

Morley explained, "The legislature clearly did not intend to allow executive branch officials to decide for themselves which write-in ballots are 'close enough' to be counted. The statute should not be read as granting the Lieutenant Governor or Director of Elections the power to decide elections based on how permissive they choose to be regarding write-in ballots. Allowing such discretion would open those serving in the executive branch to accusations of making rulings that favor one candidate over another. The legislature decided to avoid this potential appearance of bias, by creating a clear, bright line test."

Miller pointed out that the State is attempting to ignore a wide range of troubling evidence without conducting even a cursory examination. "When all of the write-in ballots from certain precincts appear to be in the same handwriting, most people would regard that as suspicious. When hundreds of people on the sex offender registry are recorded in election registers as having voted, most reasonable people similarly would conclude that someone should take a second look at that." Pointing out that he already has submitted several affidavits from campaign observers providing evidence of these issues, Miller argued that the circumstances appear troubling enough to warrant further investigation.

"The State cannot turn a blind eye to this troubling evidence, simply assume that nothing improper happened, and certify an election potentially based on thousands, if not more, of illegal ballots," said Morley.

The Court indicated that it likely would issue a ruling on the parties' summary judgment motions on Friday, but stay the effect of any order it entered to allow the losing side to appeal to the Alaska Supreme Court.

"We are confident the court will enforce Alaska law as written, invalidate the illegal standards and procedures the State applied to write-in ballots, and allow us to obtain further information regarding the other apparent improprieties with the election," Miller stated. Edit Module

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